Outline of Rules Affecting Freedom of Expression

Transcription

1 Outline of Rules Affecting Freedom of Expression May 2010 Centre for Law and Democracy democracy.org ThisOutlineisintendedtogiveguidancetocivilsocietyandotherstakeholdersin Kyrgyzstanastohowtodesignalegalframeworkforfreedomofexpressionthatis consistent with international standards. It focuses only on the most important issues,andisnotintendedtobeacomprehensiveguidetolawandregulationinthis area. 1 Anoverviewtableofthisoutlineisprovidedbelow. ContentRules Thissectionhighlightsthekeyrestrictionsoncontentthatarecommonlyfoundin democracies, along with a short description of the appropriate scope of these restrictions.underinternationallaw,restrictionsonfreedomofexpressionmustbe providedforbylaw,servealegitimateinterest(namelyprotectionoftherights or reputations of others, national security, public order (ordre public), or public health or morals), and be necessary to protect that interest. Necessity implies that restrictions: areclearlyandnarrowlydefinedandrespondtoapressingsocialneed; 1 For this purpose, the following publication is recommended: Steve Buckley, Kreszentia Duer, Toby Mendel, and Sean O'Siochru, Broadcasting, Voice, and Accountability: A Public Interest Approach to Policy, Law, and Regulation (2008, Ann Arbor, University of Michigan Press). TheCentreforLawandDemocracyisanon profithumanrightsorganisationworking internationallytoprovidelegalexpertiseonfoundationalrightsfordemocracy

2 aretheleastintrusivemeasureavailable,inthesensethatthereisnoother measure which would be effective and yet less restrictive of freedom of expression; arenotoverbroad,inthesensethattheyarenotundulywideanddonotgo beyondthescopeofharmfulspeechandruleoutlegitimatespeech;and are proportionate in the sense that the benefit to the protected interest is greaterthantheharmtofreedomofexpression. CriminalRules Hatespeech Most countries have criminal prohibitions on spreading hate speech and this is actually required under international law. Article 20(2) of the International CovenantonCivilandPoliticalRights(ICCPR)provides: Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. As with all restrictions on freedom of expression, it is important to achieve an appropriate balance between protecting other legitimate interests and not unduly restricting free speech. Limiting hate speech rules to the scope set out in Article 20(2)oftheICCPRisagoodwayofdoingthis. NationalSecurity/PublicOrder Protection of national security and public order are both interests that may come into conflict with freedom of expression. While it is legitimate to impose some restrictions on freedom of expression to protect these interests, at the same time theseareoftenabusedtoundulylimitfreespeech.agoodbalancingisprovidedin the Johannesburg Principles on National Security, Freedom of Expression and Access toinformation,adoptedbyarticle19in1995.section6provides: Subject to Principles 15 and 16 [which further limit restrictions], expression may be punished as a threat to national security only if a government can demonstrate that: (a) the expression is intended to incite imminent violence; (b) it is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence. Obscenity Mostcountriesplacesomesortoflimitonthecirculationofmaterialsdeemedtobe obscene.atonelevel,thiscaninvolverestrictionsdesignedtopreventminorsfrom accessing this sort of material, such as requiring pornographic publications to be displayedinawaythatensureschildrencannotseetheircontents. In most countries, certain types of obscene materials are absolutely prohibited. Child pornography, for example, is almost always illegal but most countries go furtherthanthis.onceagain,thechallengeishowtostrikeanappropriatebalance, TheCentreforLawandDemocracyisanon profithumanrightsorganisationworking internationallytoprovidelegalexpertiseonfoundationalrightsfordemocracy

3 sinceitisnotlegitimatetosubjecteveryonetothewhimsofmoreprudishmembers of society. Indeed, the right to freedom of expression extends to information and ideaswhichshockandoffend,aswellasthosethatarewidelyaccepted,andsoin principleprotectssexuallyexplicitmaterialswhichsomemightfindoffensive. Protectionofthejudiciary Inmanycountries,criminalrulesareinplacewhichrestrictfreedomofexpression withaviewtoprotectingtheintegrityofthejudicialprocess.thesehavetwoaims, namely to ensure that the administration of justice is fair and operates without constraints,andtoprotecttheinstitutionofthejudiciary,assuch.undertheformer category, one finds, among others, rules prohibiting the intimidation or biasing of witnesses, rules against perjury and rules prohibiting the disruption of court proceedings.ifappropriatelyphrased,thesearelegitimate. Morecontroversialarerulesdesignedtopreventthejudiciaryfromcriticism.Inthe past, such rules have been justified on the basis that there is a need to ensure respect for the judiciary so that citizens will accept their role as final arbiters of disputes in society. More recently, however, democracies are finding that it is not necessarytopreventstatementsaboutthejudiciarytothisendandthat,infact,the largerneedistoallowopencriticismofthejudiciary,asforallpublicofficialsand bodies,topromotegreateraccountability. BlasphemyandFalseNewsRules Many countries still have blasphemy laws on the books, although these are problematical from a free speech perspective. Even the UN Special Rapporteur on Freedom of Religion or Belief has called on States to consider repealing their blasphemy laws. In many countries, these laws are discriminatory, and only the main religion is protected. Furthermore, such laws almost always protect religion itselfagainstcriticismasopposedtothelegitimatesensitivitiesofbelievers.almost allsuchlawsdiscriminateagainstatheistsandnon theists,andtheyareoftenused torepressreligiousminorities,dissentingbelievers,atheistsandnon theists. An increasing number of democracies have repealed their blasphemy laws and provideforprotectionofreligiousbelieversagainstattackonlythroughhatespeech laws.ataminimum,blasphemylawsneedtobeverycarefullycircumscribedsoas toavoidbreachingtherighttofreedomofexpression. Some countries also have false news provisions, which criminalise the disseminationoffalsestatements,perse,eveniftheyarenotdefamatoryinnature. Accuratereportingis,ofcourse,animportantprofessionalaspirationforjournalists. At the same time, there are serious problems with blanket false news provisions, and they have been struck down by leading courts in a number of countries. They exertachillingeffectonjournalists,whohaveaprofessionalobligationtoreportin a timely manner on matters of public interest, and they may be abused to elevate TheCentreforLawandDemocracyisanon profithumanrightsorganisationworking internationallytoprovidelegalexpertiseonfoundationalrightsfordemocracy

4 widely held views to the status of facts or to limit the expression of unpopular opinions. CivilRules Defamation Everycountryhasinplacesomesystemofrulestopreventunwarrantedattackson reputation,otherwiseknownasdefamationlaws.anincreasingnumberofcountries aredoingawaywithcriminaldefamationlaws,historicallyjustifiedbyreferenceto publicorderbutincreasinglybeingrecognisedasabreachoftherighttofreedomof expression. Civil defamation laws must respect a number of standards if they are to be legitimateasrestrictionsonfreedomofexpression.first,theyshouldonlyprotect actualreputations forexampleofindividualsorentitieswiththerighttosueand be sued and not be used to protect objects such as State or religious symbols, flagsornationalinsignia orpublicbodies. Variousdefencesshouldbeavailableagainstachargeofdefamation,includingthat theimpugnedstatementwastrue,thatiswasanopinion,orthatiswasreasonable inallofthecircumstancestomakethestatement,evenifitultimatelyprovestobe inaccurate.statementsmadeinthecourseofproceedingsbeforelegislativebodies orcourts,andfairandaccuratereportsonthosestatements,shouldbeprotected,as should good faith statements made in the performance of a legal, moral or social dutyorinterest. Finally,remediesfordefamationshouldaimtoredresstheharmdone,nottopunish the party who made the statement. Non pecuniary remedies, such as rights of correction or reply, should be prioritised and any monetary awards should be strictlyproportionatetotheharmdone.considerationshouldbegiventoputtingan overallcaponthemonetarydamagesthatmaybeawarded. Privacy Mostcountrieshavecivillawsprovidingprotectionforprivacy,justastheydofor reputation.thisislegitimateaslongastheselawsareappropriatelycircumscribed and provide for adequate protection against abuse. Courts have identified four different types of privacy interest worthy of protection: unreasonable intrusion upon the seclusion of another, appropriation of one s name or likeness, publicity which places one in a false light and unreasonable publicity given to one s private life. Two constraints on these laws are necessary to ensure that they are not used to undulyrestrictfreespeech.first,theymustbelimitedinapplicationtosituationsin whichanindividualhasareasonableexpectationofprivacy,takingintoaccountall of the circumstances. Second, where the overall public interest is served by TheCentreforLawandDemocracyisanon profithumanrightsorganisationworking internationallytoprovidelegalexpertiseonfoundationalrightsfordemocracy

5 dissemination of a statement, this should prevail over the privacy interest. This mightbethecase,forexample,whereaninvasionofprivacydisclosedevidenceof corruptionorofathreattolifeorsafety. TheRighttoInformation Itisnowwidelyrecognisedthateveryonehasarighttoaccessinformationheldby publicbodies,subjectonlytoalimitedsetofexceptionstoprotectoverridingpublic and private interests. This right must be implemented through legislation. Such legislation should: establish a broad presumption in favour of access to all information, held by all public bodies; place an obligation on public bodies to discloseawiderangeofinformationofpublicinterestonaproactivebasis;putin place a clear procedure for making requests for information; detail a clear and narrow set of exceptions to the right of access; and provide for an independent appealsmechanismtocontestrefusalstograntaccess. MediaRegulation Thissectionoutlinesthekeyfeaturesandoptionsregardingregulationofthemedia in a democracy, consistently with the right to freedom of expression. It is divided along the lines of key media entities, namely journalists, the print media, the broadcastmediaandpublicservicebroadcasters. Threekeyprinciplesunderpinmediaregulation: Freedom: the rules should not unduly restrict the freedom of the media either in terms of the establishment and operation of media outlets, or in termsofcontent. Independence:therulesshouldasfaraspossiblepreventState,inparticular political,aswellascommercial,interferenceinthemedia. Pluralism:therulesshouldpromotepluralismanddiversitysoastoensure thewidestpossibleaccesstothemedia,andthatthemediaservetheneeds andinterestsofallgroupsinsociety. IndependenceofRegulatoryBodies It is very well established under international law that bodies which exercise regulatorypowersoverthemedia whetherthisbeoverlicensing,accreditationor allocationofsubsidies shouldbeindependentinthesensethattheyareprotected againstinterferenceofapoliticalorcommercialnature.indeed,asnotedabove,this is a fundamental principle of media regulation. The reasons for this are fairly obvious.absentsuchprotection,thedecisionsofthesebodieswillbeinfluencedby political or commercial considerations, rather than freedom of expression and the publicinterest.thelackofprotectionforindependenceisoneofthemostserious threatstofreedomofexpressioninmanycountries. Thequestionofhowtoprotectindependenceinpracticeisadifficultone,andthe specific modalities of doing this depend on the local political and institutional context.asageneralprinciple,involvingagreaterrangeofplayers includingthe TheCentreforLawandDemocracyisanon profithumanrightsorganisationworking internationallytoprovidelegalexpertiseonfoundationalrightsfordemocracy

6 legislatureandcivilsociety intheprocessofappointingthegoverningmembersof such bodies helps to bolster independence. Protection for the tenure of members, andagainstremovalonceappointed,isalsoimportant. CommercialIssues Undue concentration of media ownership undermines freedom of expression in various ways. It has a strong tendency to undermine diversity, as uniform perspectives are promoted within the ownership group and as the same programmes are syndicated among different media in the group. As a result, internationallawrequiresstatestoputinplacemeasurestopreventconcentration ofmediaownership,bothwithinagivensector suchasprintorbroadcastmedia andbetweendifferentmediasectors. Itmaybenotedthatwhilegeneralanti concentrationmeasuresareaimedprimarily at ensuring a competitive market, for which two real competitors is normally enough, anti concentration measures for the media have a far more lofty and challenging goal, namely diversity. It is, therefore, recognised that special, more stringent, anti concentration measures are needed within the media sector than whatisneededsimplytoensurecompetition. In many countries, public advertising represents a very significant part of the overalladvertisingmarket,andthusanimportantsourceofrevenueforthemedia. If the allocation of this advertising is not insulated against political interference, it canbeapotentforceforexercisingcontroloverthemedia.itisthusimportantthat systemsbeputinplacetopreventthis,includingbyensuringthattheplacementof public advertising is based on fair and objective criteria, including market conditions. Journalists Licensingofjournalists,wherebytheyhavetogothroughaprocessofapplyingto practise their profession, is not a legitimate restriction on their freedom of expression.unlikeotherprofessions suchasmedicine,lawandengineering the practiceofjournalismisafundamentalhumanright,sothatrestrictionsonaccessto theprofessioncannotbejustified.indeed,evenregistrationschemesforjournalists willfailtopassmusterasrestrictionsonfreedomofexpressionsinceinterestssuch as reputation can be protected through bringing action against the media outlet responsiblefordisseminationofthestatements. On the other hand, international law requires States to provide protection for the right of journalists and others who publish information in the public interest to refuse to disclose their confidential sources of information. The rationale behind thisisnotthatjournalistshavespecialrightswhichordinarycitizensdonot.rather, thereasoningisthatsuchprotectionisnecessarytoensuretherightofeveryoneto receive information on matters of public interest. Absent such protection, TheCentreforLawandDemocracyisanon profithumanrightsorganisationworking internationallytoprovidelegalexpertiseonfoundationalrightsfordemocracy

7 confidential sources are unlikely to come forward with information, and so the generalpublicwillbedeniedaccesstoit. Privilegedaccessofjournaliststocertainvenues suchasparliamentandthecourts is premised on the same principle of serving the wider right of the public to receive information on matters of public interest. Accreditation is the primary means by which journalists are guaranteed privileged access to these venues. Accreditationshouldnot,therefore,beconfusedwith,orabusedtocreate,asystem of registration or licensing of journalists. As with all regulatory powers, accreditation should be overseen by a body which is protected against political or commercialinterference. PrintMedia Inmanycountries,theprintmediaarenotsubjecttoanyspecialformofregulation, over and above the general rules which apply to the legal form in which they are established (such as a corporation). It is established that licensing of the print media, as with licensing of journalists, whereby one must apply for permission to establishaprintmediaoutlet,isnotlegitimate.eventechnicalregistrationsystems fortheprintmediaareconsideredtobeunnecessary,andmaybeabused,andhence should be avoided. Such systems will only be legitimate where they meet certain conditions,namely: there is no discretion to refuse registration, once the requisite information hasbeenprovided; registration does not involve substantive conditions, other than that the namebeingproposedforthemediaoutletisnotalreadybeingused; theprocessofregistrationisnotexcessivelyonerous;and thesystemisadministeredbyabodywhichisindependentofgovernment. Rightsofcorrectionandreply,ifappropriatelyframed,canprovideredressagainst wrongssuchasdefamationandinvasionofprivacywhichislessintrusivethanthe redress provided by the civil law and yet is somehow more effective(particularly for defamation, since these remedies directly address the misleading statement). Self regulatorysystemsforprovidingtheserightsarepreferable,sincetheyareless opentoabuse. Toconformtointernationalstandards,anymandatoryrightsofcorrectionandreply mustbeappropriatelycircumscribed.giventhatitisalessintrusiveremedy,aright of correction should be the preferred remedy, whenever it will effectively redress thewrongdone.arightofreplyshouldbeprovidedonlyinthecontextofabreach ofalegalrightoftheclaimantwhichcannotberedressedthroughacorrection. In some countries, bodies such as a press council are established by law to providethosewhofeeltheyhavebeenwrongedbymaterialdisseminatedthrough theprintmediawithanopportunitytocomplain.whereaneffectiveself regulatory complaintsbodyexists,oneshouldnotbeimposedbylaw.anystatutorycomplaints TheCentreforLawandDemocracyisanon profithumanrightsorganisationworking internationallytoprovidelegalexpertiseonfoundationalrightsfordemocracy

8 bodyshould,aswithallregulatorybodies,beindependent.furthermore,complaints should be judged against a pre established code of conduct, which has been developed in consultation with all stakeholders, and the only sanctionshould be a requirementtoprintamessageacknowledgingthewrong. PrivateBroadcasters Unliketheprintmedia,itisnecessarytolicencebroadcasters,atleastinasmuchas theyusetheradiospectrumtodisseminatetheirproducts,ifonlytoensureorderly use of the airwaves. However, the airwaves are a limited public resource and it is acceptedthatregulationmayalsoensurethattheyareusedinthepublicinterest.in manycountries,regulationcomprisesbothlicensingofbroadcastersandoversight ofcontent. As always, the regulator should be protected against political and commercial interference. Ideally, a planning process should be undertaken to chart the most appropriate use of available broadcasting frequencies, a sub set of all frequencies, taking into account existing uses and foreseeing an equitable division of these frequenciesamongpublic,commercialandcommunitybroadcasters. The licensing process should be in accordance with the frequency plan. In higher population density areas, where demand for spectrum resources is expected to exceedsupply,licencesshouldbeofferedonatenderbasis,allowingforcompeting bids.inlowerdensityareas,anopenbiddingsystemmaybeemployed.theprocess of assessing applications, whether pursuant to a competitive tender or open bidding, should be fair and transparent, and allow for public input. Applications should be assessed against criteria which are published in advance, and which includethegoalofpromotingdiversity. To promote diversity, the ownership structure of licence applicants should be included as part of the application, along with an overview of the programming proposed to be provided. Where granting an applicant would either increase concentration of media ownership or fail to ensure a greater range of diverse material is available to the public, this should be taken into account in deciding whetherornottoissuethelicence. It is common to impose minimum programme standards, or a code of conduct, on broadcastersbylaw,butwhereaneffectiveself regulatorysystemisinplace,thisis not necessary. Where a statutory system is imposed, it should be based on an establishedcodeofconduct,developedinconsultationwithallstakeholders,aswith anycodefortheprintmedia.sanctionsshouldbegraduated,startingwithawarning and then a requirement to broadcast an acknowledgement of breach, and the goal shouldbetoestablishclearstandards,ratherthantopunish.moreseveresanctions shouldbeimposedonlyforseriousandrepeatedbreaches,whichlightersanctions havefailedtoremedy. TheCentreforLawandDemocracyisanon profithumanrightsorganisationworking internationallytoprovidelegalexpertiseonfoundationalrightsfordemocracy

9 PublicServiceBroadcaster As with other areas of media regulation, control by the government or political interests of a public broadcaster represents a breach of the right to freedom of expression. The governing boards of public broadcasters should be protected againstsuchinterferenceinthesamewayasotherregulatorybodies. A key goal of public service broadcasting is to complement and enrich the broadcastingprovidedbycommercialbroadcasters.todothis,theyneedtobeable to operate relatively free of commercial pressures, and this requires that they receivepublicfinancialsupport.suchsupportshouldbeadequatetoenablethemto fulfiltheirmandates,andyetitneedstobeprotectedagainstthepossibilityofbeing used to exert political pressure. The best way to do this is to fund public broadcastersthroughadirectpubliclevy,forexampleonanelectricitybillorbased ontelevisionsetownership. It is also important that public broadcasters have a clear mandate set out in law, both to clarify what is expected of them and to provide for an accountability framework. The precise details of this mandate will depend on the country and context, but they are normally expected to fulfil such functions as providing a comprehensive and quality news service, giving voice to and satisfying the information needs of all sectors of society, developing national culture and programming,andprovidingeducationalprogramming. TheCentreforLawandDemocracyisanon profithumanrightsorganisationworking internationallytoprovidelegalexpertiseonfoundationalrightsfordemocracy